cable and over-the-air television transmission and certain
acknowledged dissimilarities between the financial arrangements
found in the traditional over-the-air television industry and
in the far newer cable television industry. Since cable
television did not exist in 1950, ASCAP suggests, the drafters
of the Decree could not have intended to include those novel
entities within the language of the Decree.
As for the per-program issue, ASCAP again rests its argument
principally on the notion that cable television is a new form
of mass communication. Accordingly, ASCAP urges that it was not
intended to be covered by the term "television broadcaster"
found in Article VII(B) of the Decree.
In resisting these arguments, the applicants suggest that the
differences between the manner of operation of the over-the-air
networks and the cable program suppliers are immaterial in view
of the purposes of the Decree, and particularly the purposes of
Articles V(A) and VII(B). They invoke the asserted functional
equivalence of the original television networks and the cable
program suppliers, and suggest as well that the Decree was
designed to be forward-looking and to encompass all forms into
which the television industry, which was still in its infancy
in 1950, might thereafter evolve.
Specifically with respect to the licensing-at-the-source
question, the applicants assert, as an alternative argument,
that even if the term "telecasting network" is narrowly
defined, they should nonetheless be entitled to the same form
of license as the Decree guarantees to the traditional
television networks based on the anti-discrimination provision
of Article IV(C). The applicants also invoke the language of
Article IX, which requires ASCAP to quote a fee on demand "for
the license requested." They contend that this language
entitles them, at a minimum, to any reasonable form of license
that they may request, even if it is not otherwise required by
Finally, on the question of the per-program license, the
applicants also cite the anti-discrimination provision of
Article VIII. Specifically, they argue that it underscores the
drafters' intention that all "licensees" be given "a genuine
choice" among the various types of licenses, including the
Before addressing these arguments, I briefly summarize the
legal standards that govern the resolution of these matters.
A. Standards for Summary Judgment
For ASCAP to prevail on its motion, it must satisfy the court
that there is no dispute as to any material fact and that,
based on the undisputed facts, it is entitled to judgment as a
matter of law. See, e.g., Montana v. First Federal Savings &
Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S.
Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied,
480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); Falls Riverway
Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir. 1985).
It is axiomatic that the role of the court on such a motion "is
not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried, while resolving
ambiguities and drawing reasonable inferences against the
moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d at 11;
Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.
1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d
226 (1987). See, e.g., Parsons v. Honeywell, Inc.,
929 F.2d 901, 904 (2d Cir. 1991); Branum v. Clark, 927 F.2d 698, 704 (2d
Cir. 1991); Twin Laboratories, Inc. v. Weider Health & Fitness,
900 F.2d 566, 568 (2d Cir. 1990); Montana v. First Fed. Sav. &
Loan Ass'n, 869 F.2d at 103; Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1989).
The movant bears the initial burden of informing the court of
the basis for its motion and identifying those portions of the
"pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any," that
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). Accord, e.g., Citizens Bank of
Clearwater v. Hunt, 927 F.2d 707,
710 (2d Cir. 1991). If the movant fails to meet its burden, the
motion must be denied even if the opposing party does not
submit any evidentiary matter to establish a genuine factual
issue for trial. Adickes v. S.H. Kress & Co., 398 U.S. 144,
160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970).
If the movant carries its initial burden, the burden shifts
to the party opposing the motion to demonstrate a genuine
dispute as to one or more of the material facts. Celotex Corp.
v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. See also
Citizens Bank of Clearwater v. Hunt, 927 F.2d at 710; Greater
Buffalo Press, Inc. v. Federal Reserve Bank of New York,
866 F.2d 38, 42 (2d Cir.), cert. denied, 490 U.S. 1107, 109 S.Ct.
3159, 104 L.Ed.2d 1022 (1989). In responding to the motion, the
opposing party cannot simply rely on its pleadings or on
conclusory factual allegations, or on conjecture as to the
facts that discovery might disclose. See, e.g., Gray v. Town of
Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing
party must present specific evidence in support of its
contention that there is a genuine dispute as to the material
facts. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 324,
106 S.Ct. at 2553; Twin Laboratories v. Weider Health &
Fitness, 900 F.2d at 568; Montana v. First Fed. Sav. & Loan
Ass'n, 869 F.2d at 103; Knight v. U.S. Fire Ins. Co., 804 F.2d
at 12; L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1, 3-4
(2d Cir. 1985). To demonstrate a "genuine dispute," the
opposing party must come forward with enough evidence to
justify a reasonable jury returning a verdict in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348,
1355, 89 L.Ed.2d 538 (1986); Citizens Bank of Clearwater v.
Hunt, 927 F.2d at 710; Cinema North Corp. v. Plaza at Latham
Associates, 867 F.2d 135, 138 (2d Cir. 1989).
B. The "Licensing at the Source" Claim
ASCAP argues that the Decree should be read as a contract;
that, so read, it unambiguously precludes cable program
suppliers from the protection of Article V(A) — which governs
radio broadcasting networks, telecasting networks and wired
music services — and that therefore summary judgment should be
granted in its favor on this portion of the applicants'
petition. As will be seen, I conclude that the language of
Article V(A) does not unambiguously support ASCAP's reading,
and that with the guidance of appropriate aids to construction,
it becomes apparent that in fact the applicants are covered by
Article V(A). In view of this conclusion, and the absence of
any disputed issues of material fact, the court will enter
summary judgment for the applicants on this claim.
1. Interpreting a Consent Decree
We start by noting that, in general terms, ASCAP is correct
in asserting that the courts will interpret decrees with the
same tools as are utilized in the construction of private
contracts. This follows from the fact that "[a] consent
judgment, though it is a judicial decree, is principally an
agreement between the parties." S.E.C. v. Levine,
881 F.2d 1165, 1178 (2d Cir. 1989). Accordingly, decrees are generally
to be interpreted consistently with their "plain meaning" or
"explicit language." See, e.g., United States v. Atlantic
Refining Co., 360 U.S. 19, 22-23, 79 S.Ct. 944, 946, 3 L.Ed.2d
1054 (1959); Suarez v. Ward, 896 F.2d 28, 30 (2d Cir. 1990);
Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985).
The point of this oft-cited observation, and of the frequent
admonition to read decrees within their "four corners", is that
the decree "represents a compromise between parties who have
waived their right to litigation and, in the interest of
avoiding the risk and expense of suit, have give[n] up
something they might have won had they proceeded with the
litigation. . . ." Berger v. Heckler, 771 F.2d at 1568 (quoting
United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct.
1752, 1757, 29 L.Ed.2d 256 (1971)). Thus, we are warned that
"the scope of the decree must be discerned within its four
corners, and not by reference to what might satisfy the
of one of the parties to it." Fire-fighters Local Union No.
1784 v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585, 81
L.Ed.2d 483 (1984). Accord, e.g., S.E.C. v. Levine, 881 F.2d at
1178-79; Berger v. Heckler, 771 F.2d at 1568. To do otherwise,
by ignoring plain language and meaning, would deprive one of
the parties to the decree of the benefits for which he
bargained and in exchange for which he "waived his right to
litigate the issues raised, a right guaranteed to him by the
Due Process Clause." United States v. Armour & Co., 402 U.S. at
682, 91 S.Ct. at 1757. Accord, e.g., S.E.C. v. Levine, 881 F.2d
Notwithstanding the stringency of these strictures, they
necessarily are limited to cases in which the relevant
provisions of the decree have a clear and unambiguous meaning.
If the language utilized has only one reasonable
interpretation, see generally Burger King Corp. v. Horn &
Hardart Co., 893 F.2d 525, 528 (2d Cir. 1990); Schering Corp.
v. Home Ins. Co., 712 F.2d 4, 9-10 (2d Cir. 1983), then the
court must look exclusively to the language found in the
decree. See United States v. Armour & Co., 402 U.S. at 680-83,
91 S.Ct. at 1756-58. If, however, the wording is susceptible to
more than one reasonable construction, then the court must look
to extrinsic evidence, as is the case with ambiguous contracts.
See, e.g., United States v. ITT Continental Baking Co.,
420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); S.E.C.
v. Levine, 881 F.2d at 1179; Schurr v. Austin Galleries
of Illinois, Inc., 719 F.2d 571, 575 (2d Cir. 1983). As noted
by the Supreme Court in ITT,
[s]uch aids include the circumstances surrounding
the formation of the consent order, any technical
meaning words used may have had to the parties,
and any other documents expressly incorporated in
420 U.S. at 238, 95 S.Ct. at 935.